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State v. Steelman9/13/1978
s for the examination. See State v. Shaw, 106 Ariz. 103, 471 P.2d 715 (1970), cert. den. 400 U.S. 1009, 91 S.Ct. 569, 27 L.Ed.2d 622 (1971).
In the case at bar, Steelman claimed that it had been his understanding during each interview that the doctors were treating him for his withdrawal symptoms. The doctors, on the other hand, testified that they made it clear that they were psychiatrists sent by the District Attorney's Office. The question of the existence of the doctor-patient privilege therefore was one of the credibility of the testimony. The admissibility of evidence turned on the trial court's determination of the credibility of testimony and was within the discretion of the trial court. Absent abuse, such discretion will not be overturned on appeal. State v. Sturgis, 113 Ariz. 311, 553 P.2d 665 (1976). We find no abuse in the instant case.
b. Testimony regarding defendant's sanity at the time of the crime
Steelman also contends that it was a violation of his Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel to allow the testimony of Drs. Austin and Rogerson who examined him the evening he was brought into the San Joaquin County Jail to testify concerning his sanity at the time of the crime.
Even though incriminating statements made by Steelman might not be admissible during the case in chief, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), it does not follow that all use of the information obtained by the doctors is inadmissible. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). The doctors did not testify in regard to the guilt or innocence of Steelman, but only as to their opinion of his sanity at the time of the crime. This was in response to Steelman's insanity defense. This limited use of the interviews was permissible. Harris, supra.
The argument that the testimony violates the privilege against self-incrimination arises from the fact that this was a psychiatric examination which took place before the defendant had raised the defense of insanity so there could be no implied waiver of privilege. State v. Freeman, 114 Ariz. 32, 559 P.2d 152 (1976); United States v. Albright, 388 F.2d 719 (4th Cir. 1968). This issue, however, was never adequately presented to the court below and we therefore are unable to consider it due to an inadequate record. See United States v. Malcolm, 475 F.2d 420 (9th Cir. 1973).
WHETHER THE TESTIMONY BASED ON THE CALIFORNIA INCIDENTS SHOULD HAVE BEEN EXCLUDED
Except for reference to prior convictions in Steelman's direct testimony, no details concerning the California murders were introduced at trial. Each doctor was asked about the basis for his opinion on cross-examination. Dr. Gary Cavanaugh, one of the State's psychiatrists, said that his interview and police reports relating to the California charges had been considered by him in forming his opinion about the defendant's mental capacity. Dr. Austin stated that he had relied on information relating to the California charges.
At the time of the trial in July 1975, the rule in Arizona prohibited a psychiatrist (or other expert) from giving an opinion which was based on facts which had not been presented in evidence. State v. Drury, 110 Ariz. 447, 520 P.2d 495 (1974); State v. Gevrez, 61 Ariz. 296, 148 P.2d 829 (1944). Thus, under the law at the time of the trial it was error to permit the D
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